Fox v. Chater

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 24, 1997
• Docket: 96-7068
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS Filed 1/24/97 FOR THE TENTH CIRCUIT

CHARLES R. FOX,

Plaintiff-Appellant,

v. No. 96-7068 (D.C. No. CV-95-255-B) SHIRLEY S. CHATER, Commissioner (E.D. Okla.) of Social Security,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before ANDERSON, KELLY, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Plaintiff-appellant Charles R. Fox (claimant) appeals the district court’s

decision upholding the Commissioner’s denial of disability benefits and

supplemental security income. Claimant alleged that he had been disabled, since

April 1, 1989, from the residual effects of three back surgeries. The

administrative law judge (ALJ) determined, at step five of the applicable analysis,

20 C.F.R. §§ 404.1520, 416.920, that, although claimant could not perform his

past relevant work as a truck driver, he remained capable of performing other

work existing in the national economy. The Appeals Council denied review,

making the ALJ’s determination the Commissioner’s final decision.

This court reviews the Commissioner’s decision only to insure that the

record contains substantial evidence supporting her factual findings and that she

applied the law correctly. Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995).

At step five, the Commissioner bears the burden of establishing that there is work

existing in the national economy that claimant remains capable of performing.

Saleem v. Chater, 86 F.3d 176, 178 (10th Cir. 1996).

Claimant argues that, in discrediting his complaints of disabling pain, the

ALJ failed to consider his inability to afford medical treatment and his fear of

addiction to prescription pain medication as justifications for not seeking further

treatment. In addition, claimant asserts that the ALJ should have contacted his

treating and consulting physicians concerning his ability to perform the sitting

-2- requirements of sedentary work. We need not address any of these arguments,

however, because claimant failed to raise these specific issues in his objections to

the magistrate judge’s recommendation. Soliz v. Chater, 82 F.3d 373, 375-76

(10th Cir. 1996). Further, the ALJ’s analysis of claimant’s complaints of

disabling pain was otherwise adequate. See Kepler v. Chater, 68 F.3d 387,

390-91 (10th Cir. 1995) (discussing proper analysis of complaints of disabling

pain).

We also need not address the issue of whether the ALJ erred by

determining that claimant could perform a full range of sedentary work and

denying claimant benefits based upon the application of the medical-vocational

guidelines, see 20 C.F.R. Pt. 404, Subpt. P, App. 2, because the ALJ also relied

upon the testimony of the vocational expert (VE) to deny benefits. While

claimant further argues that the ALJ’s reliance on the VE’s testimony was

misplaced because the questions eliciting that testimony did not reflect all of

claimant’s limitations, review of the record indicates that the ALJ’s questions to

the VE included all the limitations the ALJ found to be credible. See Gay v.

Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993). There is no reason apparent from

this record for this court not to defer to the ALJ’s credibility determination. See

Kepler, 68 F.3d at 391 (discussing appellate review of ALJ’s credibility

determination).

-3- The judgment of the United States District Court for the Eastern District of

Oklahoma is, therefore, AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

-4-